That's a fair point. I can't think offhand of a firearm that would not have a military or self-defense application. Even Miller's sawed-off shotgun could have been shown to have had a military application (Miller v. U.S., 1939). But theoretically, if a gun could be found that had no military or self-defense application, I don't believe it would be covered by the 2nd Amendment.
Any arm capable of being borne would remain within the scope of the second amendment. The right "shall not (an imperative, not a request) be infringed." Again, I will point out that this word means "to intrude into" or "diminish." I'm not sure what the purpose of delving into "theory" is, if no one could think of a arm that would not have some military or self defense purpose .
AlexanderA said:
The words "arms" and "bear" are terms of art, or at least they were in 1791, when the Amendment was adopted. "Arms" were the ordinary weapons of the soldier, including his musket, bayonet, and ammunition. "Bear" didn't mean to carry them around haphazardly. It meant to carry them under some sort of military drill and discipline. Of course these terms have been broadened with the passing centuries, but you get the idea.
OK, the Militia Clause was negated by Justice Scalia as mere "prefatory language," in the Heller case. I believe that that was a mistake. His interpretation narrowed the scope of the 2nd Amendment, and weakened the right to bear arms. (It's going to be used to uphold AWB's in the future.) The correct view, in my opinion, is to give the Militia Clause due weight, with the understanding that all members of the public are part of the constitutional militia. The upshot of that view is that everybody is entitled to his own machine gun.
Term of art or not, I cannot subscribe to the theory that "to keep and bear arms" meant to have them under some sort of military drill and or discipline. Soldiers do that --- possess arms in drills and under discipline ---- but the 2A was intended to protect the right of the people to own the weapon ( as in "keep"), to maintain it in his possession, in his home or domicile, and to "bear" (carry upon ones person).
No one has ever denied that soldiers be armed, both tyrannical despots and leaders of free countries have raised armies and armed the soldiers with whatever the common weapon of the era was. The 2A, IMHO, was clearly intended to protect the right of a free citizen, not a soldier, national guardsman, or militiaman, despite their being considered a subset of the militia.
I don't understand where "haphazard" comes in. The amendment does not imply, or suggest approval of any kind of unsafe or clumsy carrying of arms, and I think we'd all agree someone proceeding along a public street twirling a loaded gun on his finger like a tv gunfighter would be viewed as a danger to the public and dealt with accordingly.
We have laws concerning concealed or open carry in various states, and this is one area where the individual state probably does have proper authority to determine the appropriateness of carry method , so long as it does not outright deny the right.